Says Opinion Does not Conform to the Rules of Professional Conduct and Legal Standards
Hilo, HI- Council member Jen Ruggles released a letter today in response to Corporation Counsel Joe Kamelamela’s opinion regarding possible criminal liability for war crimes. In a letter on Corporation Counsel letterhead dated August 22, 2018, Kamelamela’s answer consisted of two sentences stating, “we opine that you will not incur criminal liability under state, federal and international law. See Article VI, Constitution of the United States of America (international law cannot violate federal law).”
Council member Ruggles, stated that she had been advised by her attorney that Kamelamela’s answer was inconsistent with Rule 1.1 of the Hawai‘i Rules of Professional Conduct that applies to all licensed attorneys including government lawyers such as Corporation Counsel. The rule requires, “Competent handling of a particular matter [which] includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.”
Last week Ruggles had sent a letter to Mr. Kamelamela requesting he assure her that she was not incurring criminal liability under international humanitarian law and United States Federal law as a Council member for legislating and being complicit in the collection of taxes, foreclosures, and criminal prosecutions that appeared to be in violation of the U.S. Constitution and international humanitarian law.
Ruggles said she had retained legal counsel, Stephen Laudig, to be sure that her concerns received proper consideration. She said her attorney had advised her to refrain from legislating until Mr. Kamelamela has assured her she was not incurring criminal liability for the alleged war crime of enacting American law within the occupied territory of the Hawaiian Kingdom. According to Black’s Law Dictionary, the legal definition of “assure” is to “make certain and put beyond all doubt.”
Ruggles said Laudig advised her that Kamelamela’s answer was a conclusory statement unsupported by any facts and analysis and not a legal opinion. Therefore, Laudig stated that Kamelamela’s “letter provides no analysis, or argument making it something other than a legal opinion in the sense that it marshals no facts or law to reach a reasoned position.”
Laudig also pointed out to Kamelamela that his statement that “international law cannot violate federal law”, was not a true statement. He went on to further state that Kamelamela’s statement was a similar conclusion made by U.S. Department of Justice Deputy Assistant Attorney General John Yoo in his now infamous legal opinion regarding Application of Treaties and Laws to al Qaeda and Taliban Detainees dated January 9, 2002. Like Council member Ruggles who is concerned of incurring criminal liability, the General Counsel for the U.S. Department of Defense was also concerned about the incurring of criminal liability under international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan. Yoo’s conclusion in his legal opinion stated “that neither the federal War Crimes Act [18 U.S.C. §2441] nor the Geneva Conventions would apply.”
Laudig states to Kamelamela that “Yoo’s legal opinion was found to be flawed and allegations of war crimes against Yoo and those relying on his opinion, arose in Germany in 2006, Spain in 2009, and Russia in 2013. After the United States Senate Intelligence Committee Report on CIA torture was released in December 2014, Erwin Chemerinsky, who at the time was Dean of the University of California, Irvine School of Law, called for the prosecution of Yoo for his role in authoring, as well as co-authoring, what came to be known as the Torture Memos.”
Laudig cautioned Kamelamela as to how he should “answer Council member Ruggles’ inquiries, because she is not the only member of the County Council that could be affected by your legal opinion.”
Council member Ruggles’ attorney reminded Kamelamela that the Office of the Corporation Counsel is tasked with giving legal counsel on matters related to the official powers and duties of Council members. He reminded Kamelamela that her request was made in her official capacity seeking legal advice in order to assure her that she was not incurring criminal liability under international humanitarian law and United States Federal law as a Council member for:
1. Participating in legislation of the Hawai‘i County Council that would appear to be in violation of Article 43 of the Hague Regulations and Article 64 of the Geneva Convention where the laws of the Hawaiian Kingdom must be administered and not the laws of the United States;
2. Being complicit in the collection of taxes from protected persons that stem from legislation enacted by the Hawai‘i County Council, which would appear to be in violation of Article 28 and 47 of the Hague Regulations and Article 33 of the Geneva Convention where pillaging is prohibited;
3. Being complicit in the foreclosures of properties of protected persons for delinquent property taxes that stem from legislation enacted by the Hawai‘i County Council, which would appear to be in violation of Article 28 and 47 of the Hague Regulations and Article 33 of the Geneva Convention where pillaging is prohibited, as well as in violation of Article 46 of the Hague Regulations and Articles 50 and 53 of the Geneva Convention where private property cannot be confiscated; and
4. Being complicit in the criminal prosecution of protected persons for committing misdemeanors or felonies that stem from legislation enacted by the Hawai‘i County Council, which would appear to be in violation of 147 of the Geneva Convention where protected persons are prohibited from being unlawfully confined, and cannot be denied a fair and regular trial by a tribunal with competent jurisdiction.
Council member Ruggles stated that Corporation Counsel’s letter did not comply with her request for a legal opinion. Her attorney compared the quality of Kamelamela’s letter of the 22nd to a previous 5 page much more thorough opinion on a much simpler matter dated November 3, 2017 involving a grant she wanted to provide for a community center titled Orchidland Neighbors CRF Grant Follow-up that included sections on background, facts, analysis, and a conclusion. She says for this grant Kamelamela had provided a legal opinion that appeared to have met the standard of professional conduct and that she was anticipating a response of similar quality. She also referred to a 12-page opinion by Kamelamela’s predecessor, Lincoln Ashida, which also included facts, analysis, and a conclusion to then Council member Bob Jacobson dated May 26, 2004, regarding Article III, Section 3-2, Hawai‘i County Charter WRK. NO. 03-3641
During last week’s Council Committee meetings on August 21, 2018, Kamelamela admitted that he had not yet read her 9-page letter, and Ruggles says that she was taken aback by Kamelamela’s uninformed comments made, which insinuated she was involved with Native Hawaiian sovereignty groups and that is what had motivated her inquiry.
She stated Kamelamela’s comments “struck me as improper and not what I would expect from a professional tasked with the responsibilities of his office nor from an attorney speaking to an elected official in public.”
She went on to state:
“I represent my constituents from District 5, and swore to support and defend the U.S. Constitution. If Kamelamela had read the letter before voicing his opinion on my legitimate request, he would have clearly known that the native Hawaiian sovereignty movement is unrelated to the issue of potential liability for war crimes. The memorandum opinion of Dr. deZayas, was not from a sovereignty group, but from a United Nations Independent Expert. His use of the terms ‘plundering’, ‘enabling’, and ‘colluding’ are precise legal terms associated with criminal activity for violating the Hague and Geneva Conventions. I do not take this memorandum lightly, nor should he.”
In Laudig’s response to Kamelamela, he states, “This letter is in the nature of a follow up reminder and opportunity to provide what could be described as a ‘proper’ legal opinion which would include…meeting the standards of competent practitioners’ as the Hawai‘i Rules of Professional Conduct outlines.”
Ruggles says, “until Corporation Counsel provides her with a proper legal opinion responding to the statement of facts, consistent with the Hawaii Rules of Professional Conduct, and the legal definition of assurance that I am not incurring criminal liability under U.S. law and international law, which includes the 1907 Hague Regulations and the 1949 Geneva Convention, IV, I painfully regret I have been advised by my attorney that I must continue to refrain from legislating.”
Ruggles added, “I will be holding a townhall meeting on this issue shortly, and as always, welcome our constituents’ concerns, questions, and ideas on any issue. I am available to them and will continue to work hard in providing transparency and accountability in government.”